Moerke, Jeffrey et al v. Altec Industries, Inc.

Filing 58

ORDER that Wisconsin Power and Light Company is dropped from plaintiff Jeffrey Moerke's complaint under Fed. R. Civ. P. 21. Signed by District Judge Barbara B. Crabb on 1/7/2014. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JEFFERY MOERKE
ORDER
Plaintiff,
and
WISCONSIN POWER AND LIGHT COMPANY
Involuntary Plaintiff,
12-cv-903-bbc
v.
ALTEC INDUSTRIES, INC., HETRONIC USA, INC.,
and LEXINGTON INSURANCE COMPANY,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil action, plaintiff Jeffery Moerke is suing defendants Altec Industries, Inc.,
Hetronic USA, Inc. and Lexington Insurance Company for injuries he alleges he sustained
as a result of a defective product. In an order dated November 26, 2013, dkt. #56, I
informed plaintiff that he could not name Wisconsin Power and Light Company as an
involuntary plaintiff because he had not shown that Wisconsin Power and Light had refused
to join the lawsuit and was outside the court’s jurisdiction. Such a showing is the only
circumstance in which a party may be named as an involuntary plaintiff in federal court. 7
Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure
§ 1606, at 73 (3d ed. 2001) (“A party may be made an involuntary plaintiff only if the

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person is beyond the jurisdiction of the court, and is notified of the action, but refuses to
join.”). See also Murray v. Mississippi Farm Bureau Casualty Insurance Co., 251 F.R.D. 361,
364 (W.D. Wis. 2008) (“Traditionally, a ‘proper case’ is one in which the involuntary
plaintiff is outside the court's jurisdiction and is under some obligation to join the plaintiff's
lawsuit but has refused to do so.”).
I gave plaintiff until December 9, 2013, to file an amended complaint that (1) names
Wisconsin Power and Light Company as a plaintiff (and is signed by counsel for the
company); or (2) names Wisconsin Power and Light as a defendant, accompanied by proof
of service and a motion for realignment. I told plaintiff that, if he failed to respond by
December 9, I will dismiss Wisconsin Power and Light from the case.
Because neither plaintiff nor Wisconsin Power and Light responded to the order, I
am dropping Wisconsin Power and Light from the case for improper joinder. Fed. R. Civ.
P. 21 (“Misjoinder of parties is not a ground for dismissing an action. On motion or on its
own, the court may at any time, on just terms, add or drop a party.”).

ORDER
IT IS ORDERED that Wisconsin Power and Light Company is DROPPED from

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plaintiff Jeffery Moerke’s complaint under Fed. R. Civ. P. 21.
Entered this 7th day of January, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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